Democracy Watch, an organization that works toward empowering Canadians and Canadian democracy, again turned to Federal Court to challenge the Canadian judicial appointments process. The organization’s frequent turns away from democratic institutions like Parliament speak to dwindling confidence in any sort of responsible government. The organization’s judicial challenge, in this case, speaks to the continuing colonial reality that is Canada’s parliamentary democracy.

The colonial reality to which I refer is a strong Crown—that is, a strong executive.

Canada’s parliamentary system has been influenced since its inception by foreign political concerns. As a British colony, Canadian parliaments and provincial legislatures were superintended by governors. Though our Queen is now Canadian, she is, and her predecessors were, British first, and the Governor-General remains a symbol of our colonial past.

Far be it for me to suggest a change to this arrangement: I don’t think a radical shift is necessary. I am concerned about the state of our parliaments when a problem with judicial appointments is not a subject of sustained parliamentary inquiry. The executive branch instead seems to have free reign to make appointments that cross into the overly political. I think that Democracy Watch is equally concerned with this point.

My concern redoubled when an academic asked to give some background on this piece flatly replied that ‘as order-in-council appointments, there’s very little role for Parliament to play.’ This statement is factually accurate. The governor’s council has always made these decisions without parliamentary involvement, but this fact misses the point. The Crown’s pick of judges might not be subject to parliamentary approval, but the judicial appointment process is subject to parliamentary oversight.

The application

Democracy Watch applied for judicial review against the federal judicial appointments process on November 5, 2020. The application alleges that the Attorney General of Canada considers candidates for appointment as superior court judges by referring to their political history, which creates a biased bench, thus undermining judicial impartiality.

There is truth to Democracy Watch’s claim. The Liberal Party of Canada maintains a database called Liberalist that it shares with the Prime Minister’s Office. The PMO uses the database, traditionally an election tool, when vetting judges. Liberal ministers, MPs, and other party officials have also been implicated in the vetting process. Democracy Watch’s court filing challenges these practises.

There is indeed cause for concern. The CBC today reported that a lawyer who contributed to the Attorney General’s nomination campaign was appointed to the Quebec Superior Court bench.

Odds of success

A court filing, however, doesn’t really strike at the heart of the matter. A political appointee can be an impartial judge because the legal system defines impartiality as ‘an absence of prejudice or bias, actual or perceived, on the part of a judge in a particular case.’ This narrow definition reflects judges’ roles as arbiters of particular facts, not general issues.

To be sure, impartiality has an institutional element. The Supreme Court recognized a test for institutional bias:

Step One: Having regard for a number of factors including, but not limited to, the nature of the occupation and the parties who appear before this type of judge, will there be a reasonable apprehension of bias in the mind of a fully informed person in a substantial number of cases?

Step Two: If the answer to that question is no, allegations of an apprehension of bias cannot be brought on an institutional level, but must be dealt with on a case-by-case basis. [Original emphasis]

Step one is the obvious issue raised by Democracy Watch in its filing, but it is unclear whether the government’s use of information regarding political contributions affects the appointee’s judicial decisions. Such an undertaking would require massive statistical analysis. Canadian superior courts rendered 620 944 civil judgments in the 2018-19 fiscal year. Combing through those cases to find patterns for a specific judge’s decisions is prohibitively expensive and time-consuming.

The breadth of cases suggests that Democracy Watch cannot establish a firm causal relationship between a political appointment and biased judgments. The legal system, moreover, presumes that judges are impartial unless there is proof to the contrary.

Democracy Watch has a tough row to hoe.

Enduring colonialist mentalities

Canada’s democratic development has historically proceeded through resistance to the colonizing Crown. The difficulties imposed upon governors-general by pre-Confederation legislatures forced them to accede to responsible government. That system of government confronted restive legislatures. Ministers had to convince their colleagues—even colleagues on their benches—that the executive’s will should be done.

As Canada became more independent through parliamentary resistance to royal control, the executive became naturalized and, thus, more capable of exercising control over Parliament. This move plays itself out in the historical consolidation of power in the Prime Minister’s Office. The colonial master, now largely forgotten, is replaced by an appointed official that bears the colonial royal imprimatur.

My charge of a continuing colonial reality in our parliamentary democracy is borne on parliamentarians’ reaction to this renewed centralization of power. They’ve done quite literally nothing. Commentators—journalists and pundits—point to the increasing politicization of legal disputes as a problem. This politicization is a problem, but it is caused by parliamentary inaction.

Analysis of Democracy Watch’s legal action is evidence of the problem. Wayne MacKay, a professor emeritus at Dalhousie’s Schulich School of Law told the Globe and Mail that Democracy Watch’s application is a political ploy to pressure government. The Law Times reported Mr. Wade Poziomka, Democracy Watch’s counsel, saying that the organization’s

first choice is to work with federal politicians and other stakeholders to achieve this goal. If litigation is necessary, however, Democracy Watch will argue the merits of its case before the Federal Court.

The court filing, coming as it does in a minority Parliament, seems meant to spur the opposition parties in the House of Commons to action. Democracy Watch has run campaigns to stop patronage appointments and unfair law enforcement. It is unclear, however, how Democracy Watch has engaged with these parties or with individual members regarding the subject of its present legal challenge.

What’s clear, though, is that parliamentarians in a system of responsible government like ours must hold the government to account. Members of Parliament and Senators, regardless of political persuasion, are delegated the responsibility of supervising the Crown and its ministers. This is a primordial duty, one that I have pointed up in other posts.

The point is trite but deadly serious: when confidence in Parliament fails, judicial challenges take on increasingly political colour. We shouldn’t bemoan these assays. Take them for the symptoms that they are and vote for MPs who can, regardless of party, have the presence of mind to criticize executive government when the government may be criticized. Speak also with senators, who are more independent than ever, to encourage them to poke and prod government.

Being an active subject means emulating the parliamentary example of Canada’s forebears. Tough judicial challenges only go so far. Concerted pressure for a more critical Parliament is the way.

The Nova Scotia House of Assembly has ground to a standstill for the nine months that COVID-19 has raged throughout the world. I contend that this legislative inaction can either be attributed to the hyper-politicization of parliamentary procedure or to uninformed members stumbling through the motions. Either case is concerning, and it should concern all Canadians: members of a House of Assembly are elected first and foremost to exercise their rights and responsibilities as legislators.

Nova Scotia’s gridlock reflects a cheapening of parliamentary representation because those we elect to legislatures are primarily tasked with specializing in vetting laws and government policy within the legislative context—with a knowledge of procedure. As MPs and members of assemblies move further away from this context, we lose true legislative representation.

The issue, in brief, is that the House of Assembly has not sat since March 10, 2020, and the government announced that it would end the current session on December 18. It is unusual for a Canadian legislature to not sit for nine months, although Nova Scotia’s rules only require two sittings a year. The opposition (composed of eighteen progressive conservatives, five NDP, and two independent members) has alleged that the government is blocking the legislature’s return, and major Canadian news outlets have reported the same problem.

These reports are inexact and compound the issue of members rights and responsibilities. Journalists connect the voting public with moves made in Canadian legislatures. Contextualizing these moves with due regard for the legislature’s traditions and rules is an essential element to keeping our representatives accountable.

Nuts and bolts

There’s a simple addition problem in the Nova Scotia legislature that makes the government reticent to meet the House of Assembly. The current Liberal government holds twenty-six seats out of fifty-one, but one of its members is the Speaker (and thus impartial). The Liberal government consequently holds an even half of the seats; the opposition also holds twenty-five seats. The government’s grasp on power depends on all of its members attending each sitting.

This situation resembles the BC legislature’s very close numbers after the forty-first general election in 2017. The governing Liberals there had forty-three seats, while the combined opposition parties held forty-four seats. The Liberal government met the House, lost a confidence vote, and the NDP opposition formed a government without an election.

In Nova Scotia’s case, of course, COVID-19 complicates sittings. A Liberal member could easily drop out of a vote or fail to attend if the legislature is authorized to sit remotely. If a couple of Liberal members drop out, the government could fall. There’s certainly political interest on the government side in not meeting the legislature.

Bear in mind that there’s political interest in the opposition not getting to grill the government in Province House. Allegations of undemocratic government are an easy narrative, one that might let an opposition party gain seats at an election, thus tipping the balance of power toward a new government.

The politicization of deadlock

The specter of a changed government or a general election looms for the governing Liberals in Nova Scotia. The opposition parties may or may not be ready for the hustings. The more critical problem is that they’ve abdicated all control over the legislative process and pin the problem on the government. 

The NDP’s November 13, 2020, press release is a case-in-point. NDP House Leader Claudia Chender is quoted saying that:

The Liberals have consistently blocked Nova Scotians from asking questions through their elected representatives. They refused to meet through the pandemic, shut down committees for six months, and are once again shutting down the legislative processes meant to hold governments to account. 

This statement over-simplifies the problem because governments do not control legislative sittings; members have this power. Governments only have the power to dissolve, prorogue, and summon legislatures.

The Progressive Conservative leader, Tim Houston, released a statement that pins the blame for no legislative debate on the government: 

When the Legislature finally meets, it will be over 280 days since your elected MLAs last gathered at Province House. It will be open for less than an hour before it’s shut down again. By merely meeting this obligation, the McNeil Liberals are doing the bare minimum. Their continued culture of secrecy keeps them from answering to the people, for both their decisions and their indecision.

Rules

A look at the Assembly’s rules makes the issue clear. Rule 3(4) tells us that the House can’t sit without thirty days’ notice to members. This rule has been relied upon as the excuse for the House not sitting until prorogation, but the Speaker is able to recall the House at any time under rule 3(5):

wherever the House stands adjourned for a period of ten sitting days or more, if the Speaker is satisfied, after consultation with the Government, that the public interest requires that the House shall meet at an earlier time, the Speaker may give notice that being so satisfied the House shall meet.

Note the language here. The government is to be consulted, but the Speaker has the final say about when the House meets. The question for the Speaker in this circumstance is twofold. He is required to consider whether the public interest benefits from the House sitting. He is also required to consider the House’s best interest. 

These are slightly different issues. The public interest is a broad, subjective concern. The House’s interest is defined by its members, whom the Speaker serves. 

In the Westminster system, the Speaker defends all members’ rights, the most important of which is to speak in the House. Speaker John Allen Fraser, in the Canadian House of Commons, described this duty with reference to Speaker Lenthall, of the English House of Commons: ‘It was speaker Lenthall who, in the reign of Charles I, declared in the presence of the King that the Speaker’s first duty lay to the House of Commons.’ Speaker Fraser, moreover, described the application of parliamentary rules as a protection for the minority and majority: rules 

‘are designed to allow the full expression of views on both sides of an issue. … This is the kind of balance essential to the procedure of a democratic assembly. Our rules were certainly never designed to permit the total frustration of one side or the other, the total stagnation of debate, or the total paralysis of the system.’

For these quotations, however, the system in Nova Scotia appears to have stalled. 

When I speak with the opposition parties, they tell a story of frustrated procedure: the government will not agree to change the House’s procedure to allow electronic voting. 

This response, and the opposition’s framing of the issue, is not convincing when the House of Assembly’s rules and the Speaker’s role are taken into account. The House in this case is evenly divided between government and opposition. Each side has twenty-five seats; neither side can claim to speak for the majority of members. In this context, either side could appeal to the Speaker to bring the House together, to hash out COVID-19 rules, and to debate issues of public interest. 

I asked the Speaker whether he’d heard from members on this point. At the time of publication, the Speaker had not responded to my questions. 

The bottom line

Members and the Speaker seem to be the crux of this debate. Their individual and collective inaction, perhaps caused by party politics, has deprived Nova Scotians of House of Assembly oversight. Commentary on this issue has, to date, been focused on the government’s actions. Much more careful attention needs to be paid to the opposition’s ability to bring the legislature together, and to the Speaker’s powers. 

When these subjects receive their due, the story is unfortunately not so one-sided as politicians might like. With everyone to blame, voters have to consider whether the political culture that they’ve elected needs a kick-start to re-focus members’ attention on representing constituents. They can only really do so if the legislature sits.